Case No. UKUT-00414-(IAC)

v Secretary of State for the Home Department [2018] UKSC 53, Lord Carnwath endorsed what was said in EV (Philippines) v Secretary of State for the Home Department [2014] EWCA Civ 874 concerning this issue, at [58]: "In my judgment, therefore, the assessment of the best interests of the children must be made on the basis that the facts are as they are in the real world. If one parent has no right to remain, but the other parent does, that is the background against which the assessment is conducted. If neither parent has the right to remain, then that is the background against which the assessment is conducted. Thus, the ultimate question will be: is it reasonable to expect the child to follow the parent with no right to remain to the country of origin?" 122. The “real world” context of this matter is distinct from the cases before the Supreme Court in KO (Nigeria) ; there is no question of the applicant being removed at the present time. He does have the right to remain. His children are British. By definition, it would not be reasonable to expect the children to accompany their father to a country where he would be at real risk of serious harm (and there is no suggestion that he will be removed while such a risk persists). 123. We accept that, to the extent there is an element of precariousness to the applicant’s immigration status, that may lead to feelings of uncertainty for his children, and that it may be said to be in the best interests of the applicant’s children for him to be granted ILR, although that is only marginally so. We accept that most children would feel a sense of unease and concern if they knew and understood the precarious nature of their parent’s immigration status. To that limited extent, the best interests of the applicant’s children are for him to be granted ILR. But in the main, their best interests are reflected in the applicant remaining in the United Kingdom, for the time being. 124. Ms Weston submitted that section 117B(6) of the Nationality, Immigration and Asylum Act 2002 is dispositive of the ILR issue in the applicant’s favour. It is not. We put aside whether the applicant could properly be regarded as a person “not liable to deportation”, as we did not hear full argument on the statutory construction of the provision. However, at its highest, it confers protection from removal while the applicant enjoys a genuine and subsisting relationship with a “qualifying child”, which would include each of his minor British children. Section 117B(6) says nothing concerning entitlement to ILR. It sits in the context of section 117B(1) emphasising the public interest in the maintenance of immigration controls. Taken at its highest, section 117B(6) would confer upon the applicant protection from removal until his youngest child was an adult (approximately five years away), provided the applicant maintained a genuine and subsisting parental relationship with his youngest child during that period. It is irrelevant to the question of ILR. Applicant’s health 125. Turning specifically to the applicant’s health, we have already outlined some of his health conditions: see paragraphs 11, 12 and 83, above. In diagnosing the applicant with post-traumatic stress disorder, Dr Bell wrote at page 9: “…there have been a series of major catastrophic traumatic events. I refer here to the originating cause of the symptoms, i.e. the experiences of detention and torture, and the very severe ongoing stress and uncertainty as to his safety in the UK and his future, which serve, to perpetuate the symptoms and cause further deterioration… A more appropriate diagnosis in this case would be severe chronic traumatised state.” Dr Bell continues at page 10 in these terms: “Psychiatric disorders such as these are highly sensitive to the external environmental context. It is not uncommon for those who have been subjected to torture and other degradations to sustain in themselves a belief in the goodness of the world, often believed to reside in the country where they are seeking asylum. The sudden loss of this hope can cause a sudden deterioration into severe depression – I think this is likely to be the case here – that is the fact that he has not been given indefinite leave to remain and is subject to what he experiences as surveillance and state animosity towards him ( through the deployment of ‘restricted leave’ against him ) resulted in this loss of hope.” (Emphasis added) 126. Continuing his analysis of the impact of the applicant’s immigration status on his mental health, Dr Bell writes at page 11: “… disorders such as this are highly sensitive to the external context. It is clear to me that the continuous stress of being subject to a formalised measure of hostility by the state, feeling insecure, subject to restrictions on his freedom to function as any other autonomous human being and not knowing his future is safe as he is only ever given short periods of leave to remain in the UK, all act as major continuous external stressors causing him to deteriorate and preventing recovery from his condition.” 127. Also, on page 11, under the heading “ Treatment ”, Dr Bell writes that the applicant should be under the care of the appropriate psychiatric team. Although the applicant takes prescribed medication for his psychiatric disorder, it does not “seem to be effective”, Dr Bell continues. This is not surprising, he writes, as pharmacological treatment can only have a very limited role to play in such disorders. Dr Bell continues that the existence of a “major external stressor” is what acts to prevent recovery and cause deterioration. He concludes the penultimate paragraph on that page stating, “I refer here to the ongoing uncertainty as to whether and when he will be granted permission to remain in the UK permanently.” 128. The applicant’s own views on the impact of ILR are less clear. On page 4, Dr Bell writes, having summarised the feelings of hopelessness and despair that characterise the applicant’s thinking: “I asked him at this point if he thought all this would change if you were granted indefinite leave to remain in his answer was quite revealing. He said he didn’t know. He feels like this all the time. 129. Ms Weston places significant reliance on what she contends is the decision letter’s failure to have regard to the medical representations, particularly those made in light of the report of Dr Bell concerning the medical need for ILR to be granted, as well as the letters from Mr Fish and Ms Bracken. She contends that the 2019 decision failed to take sufficient account of the Bell report when considering whether the applicant was entitled to ILR, and that it is flawed on that basis. 130. There is modest superficial force to this submission, in so far as it focusses on the respondent’s consideration of the Bell report when addressing the issue of ILR. In this section of the 2019 decision, the respondent did not expressly address “other factors”, pursuant to MS (India) at [123]. 131. However, this submission cannot withstand scrutiny, for the following reasons. 132. First, the second paragraph of the 2019 decision stated that each aspect of the applicant’s circumstances and submissions had been given specific and individual consideration. 133. Secondly, it is clear from the 2019 decision that the respondent had the contents of the Bell report, and the other medical representations, in mind when assessing the three primary considerations enunciated by Underhill LJ in MS (India) . So much is clear from the respondent’s acceptance, under the heading “ Positive conduct after the offending ” on pages 9 and 10. There the respondent accepted that the applicant’s ability to contribute to society would feature limitations on account of his mental and physical health conditions. The respondent was clearly mindful of the impact of the applicant’s physical and mental health conditions when addressing the issue of ILR. 134. Thirdly, having decided that there were no exceptional or compelling circumstances meriting a departure from the “general run of case to which the normal approach properly applies”, the respondent addressed the issue of limited leave to remain. It was at that stage in her analysis that she considered the impact of the applicant’s health conditions. At page 11 the decision states, with emphasis added: “…set against the factors that indicate the normal approach should be taken, the Secretary of State has given full weight to the considerations in your client’s circumstances that weigh in favour of departure from the standard approach of granting 6 months’ [restricted leave to remain]. In particular,